Companies' 'sexy' hair fight spills into NY court

[May 27, 2008]  NEW YORK (AP) -- Victoria's Secret finds itself in one "sexy" legal fight after a trademark board ruled that its "So Sexy" hair products create confusion with a rival company's family of trademarks.

The latest tussle over who has legitimate claim to what's "sexy" in tresses came late Friday, when Victoria's Secret filed court papers challenging a federal Trademark Trial and Appeal Board ruling in favor of Sexy Hair Concepts LLC.

The board concluded in April 2007 that consumers were likely to confuse the lingerie giant's "So Sexy" trademark for hair-care items with Sexy Hair Concepts' various trademarks using the word "sexy" for its own coiffure line.

In papers filed in U.S. District Court in Manhattan, Victoria's Secret said it wants the court to consider a study it conducted. The survey found only five of 308 people who bought hair-care products associated the word "sexy" with a single company and made any reference to Sexy Hair Concepts and its offerings.

The Columbus, Ohio-based company that also introduced the Very Sexy bra said its study proves "that the word `sexy' has not acquired distinctiveness among purchasers of hair care products."

Thus, it added, Sexy Hair Concepts "is not the owner of a family of trademarks in the word 'sexy.'"

In court papers filed earlier this month, Sexy Hair Concepts said it had used "Sexy Hair" to describe hair-care items since 1998. The company said it packages and promotes the "sexy" family of products to give "sexy" a distinctive commercial impression.

Sexy Hair Concepts applied to protect its trademarks for the "sexy" product line in November 2001, well before Victoria's Secret began testing some of its "So Sexy" coiffure products in April 2003, said Sexy Hair Concepts, based in Chatsworth, Calif.

Victoria's Secret has appealed the trademark board's ruling to a federal judge, who is considering only whether the board ruled correctly.

Sexy Hair said it sells tens of millions of dollars' worth of "Sexy Hair" products annually.

Earlier this year, Victoria's Secret chief executive Sharen Turney said her company might have become "too sexy" for its own good.

"We've so much gotten off our heritage ... too sexy, and we use the word sexy a lot and really have forgotten the ultra feminine," Turney told industry analysts.

[Associated Press]

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